Ellison v The King - [2023] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0129

DANIEL ELLISON	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	16 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 115
JUDGMENT APPEALED FROM:	[2022] VCC 1341 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Knowingly dealing with proceeds of crime ($298,820), possessing drug of dependence, trafficking drug of dependence – TES 3 years and 4 months, NPP 2 years and 3 months – Knowingly dealing with proceeds of crime sentence of 2 years and 10 months – Manifest excess – Whether sentence of 2 years and 10 months for knowingly dealing with proceeds of crime manifestly excessive – Complaint of manifest excess not reasonably arguable – No prospect of TES being reduced – Application for leave to appeal refused.

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Counsel
Applicant:		Mr N Howard
Respondent:		Mr J McWilliams
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 10 August 2022, the applicant pleaded guilty in the County Court to one charge of knowingly dealing with the proceeds of crime,[1] three charges of possession of a drug of dependence,[2] one charge of trafficking in a drug of dependence,[3] one charge of committing an indictable offence while on bail[4] and one charge of contravening a conduct condition of bail.[5] On 15 August 2022, he was sentenced as follows:
[1]Contrary to s 194(2) of the Crimes Act 1958.
[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 30B of the Bail Act 1977.
[5]Contrary to s 30A of the Bail Act 1977.

Charge	Offence	Maximum	Sentence	Cumulation
Indictment M11655600
1	Knowingly dealing with the proceeds of crime	15 years	2 years and 10 months	Base
2	Possession of a drug of dependence	5 years	4 months	4 months
3	Possession of a drug of dependence	5 penalty units[6]	$100 fine	–
4	Possession of a drug of dependence	5 years	2 months	2 months
5	Trafficking in a drug of dependence	15 years	27 months	6 months
Related Summary Offences
7	Committing an indictable offence while on bail	3 months	$900 fine	–
8	Contravening a conduct condition of bail	3 months	$100 fine	–
Total Effective Sentence:		3 years and 4 months
Non-Parole Period:		2 years and 3 months
Pre-sentence Detention:		374 days
Section 6AAA Statement:		5 years, with a non-parole period of 3 years and 5 months

[6]The maximum penalty for this offence of possessing a drug of dependence was only 5 penalty units because the sentencing judge was satisfied on the balance of probabilities that the offence was committed in relation to a quantity of cannabis that was not more than the small quantity applicable to that drug (50g): see s 73(1)(a) of the Drugs, Poisons and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellison v The King

Details

AGLC: Ellison v The King [2023] VSCA 115
Case: [2023] VSCA 115
Decision Date: 16 May 2023

CaseChat Overview and Summary

The applicant, Ellison, appealed against his sentence for multiple drug-related offences and dealing with the proceeds of crime. The High Court of Australia was tasked with determining whether the applicant's sentence for knowingly dealing with the proceeds of crime was manifestly excessive. The applicant had been sentenced to three years and four months imprisonment for trafficking in a drug of dependence and possessing a drug of dependence, and two years and ten months for knowingly dealing with the proceeds of crime. The applicant argued that the sentence for the proceeds of crime was manifestly excessive.

The court considered whether the applicant's complaint of manifest excess was reasonably arguable. The court noted that the sentencing judge had thoroughly considered the relevant principles and had given adequate weight to the seriousness of the offence. The court found that the applicant's sentence for knowingly dealing with the proceeds of crime was not manifestly excessive and that there was no prospect of the total effective sentence being reduced. The application for leave to appeal was therefore refused.

The court emphasised the importance of ensuring that sentences for serious drug-related offences are sufficiently deterrent and that the punishment should fit the crime. The court found that the sentencing judge had appropriately balanced the relevant considerations and had not erred in law. The applicant's argument that the sentence for the proceeds of crime was manifestly excessive was not reasonably arguable, and the application for leave to appeal was accordingly dismissed.

Orders